Effective the date of the download of the evaluation copy of the product, the parties, being: the entity whose employee or agent downloaded the evaluation copy ("Borrower") and BlueCat Networks, Inc. if Borrower is outside of the USA, or BlueCat Networks (USA) Inc., if Borrower is in the USA, (each a "Lender"), agree, in consideration of the mutual promises herein:
LOAN/GRANT/USE/OWNERSHIP. Lender shall loan Borrower one (1) virtual instance of the downloaded version of the product and standard end user manual (collectively "Product"), under a non-exclusive, non-transferable, non-assignable license ("License") so Borrower may evaluate the Product on a trial basis only, and only at the site(s) to which originally downloaded. Borrower's license permits Product use only for Internal evaluation purposes. In this Agreement, "Internal" means Borrower's non-commercial, non-production, laboratory use for evaluation purposes only, so Borrower may determine whether to acquire the Product. A copy of the results of the evaluation shall be provided to Lender, but not to any third party. No reviews may be published or provided to third parties. All rights and ownership in the Product shall at all times remain solely with Lender.
CONFIDENTIAL AND PROPRIETARY INFORMATION ("C&PI"). Borrower agrees to treat as confidential all information of whatsoever nature, in whatever form or medium, furnished or disclosed by Lender or its agent to Borrower, pursuant to any agreement between the parties, and third party information which Borrower is aware Lender is obligated to treat as confidential. C&PI excludes information already known or developed by Borrower other than through a breach by Borrower of any of its obligations hereunder or from a third party Borrower knew to be breaching its confidentiality duty to Lender.
WARRANTY. SUBJECT TO "INDEMNIFICATION" BELOW, THE PRODUCT IS PROVIDED "AS IS". LENDER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT. IN NO EVENT WILL LENDER BE LIABLE FOR ANY DIRECT OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. LENDER HAS ADVISED BORROWER ONLY TO TEST/EVALUATE THE PRODUCT IN AN INTERNAL LABORATORY ENVIRONMENT.
INDEMNIFICATION. So long as Borrower has only used the Products in an internal environment for evaluation only, Lender agrees to pay all legal fees and expenses, and to defend, and to indemnify against any settlement amount or finally awarded judgment, resulting from any third party claim against Borrower alleging infringement of the third party's patent, copyright or trade secret (or other intellectual property right), because of Borrower's permitted use of the Product as delivered by Lender, provided that Lender is given prompt notice of any such claim and the right to control and direct the defense and settlement of each such claim.
RESTRICTIONS. Borrower may not: (a) copy, distribute, export, translate, disclose or make available to another party, the Product, or any component thereof, or disclose how the Product works, except as expressly permitted for in this Agreement; (b) reverse engineer, disassemble, decompile, or electronically transfer into another computer language, the Product or any component thereof.
SUPPORT. Borrower shall allow Lender to assist in initial set up and installation of the Product via phone/online, at a mutually agreed upon time. Lender will provide reasonable technical assistance from its support center during its normal operating hours.
TERM. The loan term is fifteen (15) days from Borrower's receipt of Product, unless Lender otherwise specifies in writing ("Term"). If, on or prior to Term expiry, Borrower has elected to purchase, for a term beyond the evaluation term, the acquisition shall be subject to Lender's then current standard end user license agreement at www.bluecatnetworks.com/end-user-license-agreement/ failing which the right to use the product expires. Borrower's issuance of the purchase order constitutes acceptance of the end user license agreement terms. Borrower shall not deploy in a production environment without purchasing. Lender recommends that Borrower engage Lender or its authorized agents for implementation in a production environment.
GENERAL. Borrower shall reimburse Lender for any damage resulting from unauthorized use or misuse. This is the entire agreement between the parties regarding the Product's loan. Headings are for ease of reference only, and are not part of the Agreement. Ontario law applies, excepting its choice of law provisions and Toronto shall be the venue. Neither party shall employ, or solicit the employment, directly, or indirectly, of any of the other's employees or contracted programmers during the Term, and for one year thereafter.